TMI Blog1958 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... plementation of the order of the Union Government dated July 5, 1954, must be quashed. - C.A. 208 OF 1958 - - - Dated:- 19-11-1958 - Judge(s) : BHAGWATI., KAPUR., S. K. DAS., S. R. DAS., SUBBA RAO JUDGMENT [S. R. DAS, C.J., delivered the judgment of S. R. DAS, C.J., and KAPUR, J. BHAGWATI, S. K. DAS and SUBBA RAO, JJ., delivered separate judgments.] S. R. DAS, C.J.---This appeal by special leave filed by one Shri Besheshar Nath, hereinafter referred to as "the assessee", calls in question the validity of a settlement made under section 8A of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947), hereinafter referred to as "the Investigation Act". This Act, which came into force on May 1, 1947, by a notification issued by the Central Government under section 1(3) thereof, has had a short but chequered career, as will appear from the facts hereinafter stated. In order to appreciate the several questions canvassed before us it is necessary to refer to the provisions of the impugned Act. Section 3 authorised the Central Government to constitute an Income-tax Investigation Commission (hereinafter called the Commission) and imposed on it the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat some person other than the person whose case is being investigated has evaded payment of taxation on income, or (b) that some points other than those referred to it by the Central Government in respect of any case also require investigation, it may make a report to the Central Government stating its reasons for such belief and, on receipt of such report, the Central Government shall, notwithstanding anything contained in sub-section (1), forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report. " The date "30th day of June, 1948" appearing in sub-sections (1) and (3) was, by Act 49 of 1948, substituted by the words "1st day of September, 1948". Section 6 sets out the various powers conferred on the Commission and section 7 prescribed the procedure of the Commission. It is not necessary to set out the various powers and the details of the procedure in extenso and it will suffice to say that they have been considered by this court and pronounced to be much more drastic and harsh than the powers to be exercised and the procedure to be followed by the Income-tax authorities acting under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 5(1) of the Taxation on Income (Investigation Commission) Act, 1947, the cases of the following persons are hereby referred to the Investigation Commission for investigation and report, as the Central Government has prima facie reasons for believing that each such person has either alone or in combination with the other persons mentioned below, evaded payment of taxation on income to a substantial extent. The material available in support of such belief accompanies. --------------------------------------------------------------------------------------------------------------------------------------------------- No. Name --------------------------------------------------------------------------------------------------------------------------------------------------- EP. 829/1 Beshashar Nath and Co. 829/2 Lala Beshashar Nath. Sd./---Pyare Lal, Deputy Secretary, Ministry of Finance (Revenue Division). The Secretary, Income-tax Investigation Commission, New Delhi. " It is not necessary to set out the annexures that accompanied this order. It appears that the total wealth statement of the assessee was filed on November 10, 1948, and was forwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxation on income or in any other proceeding before any court or other authority any matter which forms part of such settlement. (4) Where a settlement has been accepted by Government under sub-section (1), no proceedings under section 34 of Indian Income-tax Act, 1922 (XI of 1922), or under section 15 of the Excess Profits Tax Act, 1940 (XV of 1940), shall be initiated in respect of the items of income covered by the settlement, unless the initiation of such proceedings is expressly allowed by the terms of the settlement. " On July 5, 1949, the total wealth statement was received back from the authorised official. Our Constitution came into force on January 26, 1950. The order-sheet shows that the authorised official on May 26, 1950, issued a notice to the assessee fixing the hearing for June 10, 1950, which indicates that the authorised official was proceeding with the investigation set in motion by the reference of the assessee's case to the Commission. The assessee appears to have attended on June 6, 1950, with an application for extension of time which apparently was given. On September 30, 1950, the assessee supplied certain statements of his firm. The entry in the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government that it was of opinion that the terms of settlement contained in the application might be approved. The Central Government having accepted the proposed settlement, the Commission had the terms thereof recorded. The Central Government by its Order C. No. 74 (9-IT) 54 made on July 5, 1954, under section 8A(2) of the Investigation Act directed that demand notice in accordance with the said terms be served immediately by the Income-tax Officer and that all such other proceedings under the Indian Income-tax Act or other law as may be necessary be taken with a view to enforce the payment of the demand and that the entire sum of Rs. 3,50,000 be demanded in one sum. It appears, however, that the assessee was allowed to make payments by instalments of Rs. 5,000 per month. In the meantime on May 28, 1954, this court delivered judgment in Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri. In that case in the course of investigation of the case of Messrs. Jute and Gunny Brokers Ltd. which had been referred to the Commission under section 5(1) of the Investigation Act, it was alleged to have been discovered by the Commission that Suraj Mall Mohta and Co. had made la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d harsh procedure of that Act, while they could deal with other persons similarly situate under section 34 as amended and apply to them the comparatively more beneficial procedure laid down in the Indian Income-tax Act, 1922. Promptly several applications were made under article 32 of the Constitution complaining that after the amendment of section 34 of the Indian Income-tax Act, section 5(1) of the Investigation Act became discriminatory in that the persons falling within it could be dealt with under the drastic, prejudicial and harsh procedure prescribed by the Investigation Act, while other persons similarly situate and belonging to the same category could at the whim or pleasure of the Income-tax authorities be proceeded against under the more beneficial procedure prescribed under the Indian Income-tax Act. All those applications were disposed of by a common judgment reported as Shree Meenakshi Mills Ltd. v. A. V. Visvanatha Sastri. This court held that section 34 of the Income-tax Act, as amended by the Indian Income-tax Amendment Act, 1954 (33 of 1954), operated on the same field as section 5(1) of the Investigation Act, and, therefore, section 5(1) had become void and unenf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed by the Investigation Act and, therefore, the assessments made under section 8(2) were void and unenforceable. That was a case of assessment under section 8(2) in invitum after an investigation under the Investigation Act. The assessee appellant before us, who had at the end of the investigation entered into a settlement and been assessed in accordance with the terms of such settlement, however, went on making payments in discharge of the balance due under the terms of settlement right up to September 8, 1957, when he made the last payment of Rs. 8,000 bringing the aggregate payment up to Rs. 1,28,000. In the meantime the Income-tax Officer had sent a certificate requesting the Collector of Delhi for the recovery of the balance due by the assessee under the settlement. In execution of that certificate some of the properties belonging to the assessee situate in Dharamsalla and Hissar were attached. On December 27, 1957, the assessee made an application to the Income-tax Commissioner. After pointing out that between July 5, 1954, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents are anxious to have the matters of controversy raised in this appeal decided and set at rest by a decision of this court, the respondents, for the purposes of this appeal, have not insisted on their objection that an appeal does not lie under article 136 of the Constitution against an order of the Commissioner of Income-tax. Learned counsel for the assessee also has not pressed his claim for refund of the amounts already paid and has pressed the appeal regarding the balance that remains to be paid under the settlement which is characterised as invalid. Model Knitting Industries Ltd., which has a case pending in the High Court of Calcutta where the same questions as are in issue in the appeal before us are also in issue, has been permitted to intervene and we have heard counsel appearing for that intervener. In view of the three decisions referred to above learned Attorney-General does not seriously contend that the powers conferred on the Commissioner by section 6 and the procedure laid down by section 7 of the Investigation Act are not discriminatory, but what he urges is that none of the said decisions has held that section 5(1) is wholly void and inoperative. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttlement contained in the application were such as might be approved. For the purpose of satisfying itself the Commission had obviously to go into the facts either by itself or through an authorised official and to consider the materials collected by the authorised official and in the process of doing so had to hold an investigation of some sort and that investigation had necessarily to be made in accordance with the procedure prescribed by the Investigation Act itself. It is, therefore, not correct to say that there could be a proceeding for settlement without any investigation at all. In our opinion section 8A did not provide for a separate procedure at all. When a case was referred under section 5(1) it was really for investigation and a settlement was something which could crop up in the process of that investigation just as in the course of a suit parties may arrive at some compromise. In recording the compromise and passing a judgment in accordance with the compromise thereof, the court exercises the same jurisdiction as it exercises in entertaining and disposing of the suit itself. Likewise in entertaining a proposal for settlement the Commission exercised its jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reach and cannot now be permitted to set up his fundamental right. Immediately two questions arise for consideration, namely, (1) whether the assessee could waive the breach of the fundamental right in question and (2) whether in the facts and circumstances of this case he had actually done so. Re. (1) : In Behram Khurshed Pesikaka v. State of Bombay there was a general discussion whether a fundamental right could be waived. At page 638, Venkatarama Aiyar, J., observed : " The question is, what is the legal effect of a statute being declared unconstitutional. The answer to it depends on two considerations,---firstly, does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its competence; and secondly, if it is merely a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature, as, for example, when a State enacts a law which is within the exclusive competence of the Union, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eory. The learned Attorney-General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship ; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Reference to some of the articles, inter alia, articles 15(1), 20, 21, makes the proposition quite plain. A citizen can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the laws". There can, therefore, be no doubt or dispute that this article is founded on a sound public policy recognised and valued in all civilised States. Coming then to the language of the article it must be noted, first and foremost, that this article is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other articles, e.g., article, 19, do. The obligation thus imposed on the State, no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this article is not limited to citizens, but is available to any person within the territory of India. In the third place it is to be observed that, by virtue of article 12, "the State" which is, by article 14, forbidden to discrim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrimination. Such being the true intent and effect of article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so ? If the Constitution asks the State as to why the State did not carry out its behest will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it." I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear, on the language of article 14, that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has relied on three decisions of this court : (1) Laxmanappa Hanumantappa Jamkhandi v. Union of India, (2) Dewan Bahadur Seth Gopal Das Mohta v. Union of India and (3) Baburao Narayanrao Sanas v. Union of India in support of his thesis that a breach of article 14 may well be waived by a person. In none of those cases, all of which were disposed of on the same day (October 21, 1954), was the question of waiver specifically or seriously discussed. As learned counsel appearing for the intervener points out, the first of the above mentioned cases proceeded on the footing that as article 265 was not a fundamental right conferred by Part III, it could not be enforced under article 32. Learned counsel for the intervener further submitted that the decision in the second case mentioned above could also be explained on that basis and on the further ground that proceeding under article 32 was not intended to be used for obtaining relief against the voluntary action of a person and that appropriate remedy for recovery of money lay in a suit. The decision in the third case proceeded on the same basis and did not carry the matter any further. It is impossible to treat any of those decisions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waived at all, I find myself in agreement with the judgment prepared by my brother Subba Rao, J., and am of the opinion that it is not open to a citizen to waive the fundamental rights conferred by Part III of the Constitution. The question of waiver came to be argued before us in this way. If the proceedings and the settlement under section 8A of the Act were void as aforesaid, the respondent contended that the appellant had waived the fundamental right enshrined in article 14 of the Constitution and was therefore not entitled to challenge the settlement. This was only by way of reply to the contention of the appellant and was not set out in proper details in any affidavit filed on behalf of the respondent. The learned Attorney-General, however, relied upon the application made by the appellant before the Investigation Commission and the contents thereof as also the payments made by the appellant from time to time both before and after the pronouncement of our decision in M. Ct. Muthiah v. Commissioner of Income-tax, in order to support this plea of waiver and the arguments before us proceeded on that basis. No objection was taken by either of the parties before us to the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of England with them. Ireland was taken and kept under the rule of England against her own will and the acquisition of dominion status by her became a matter of treaty between the two nations. We conceive that the constitutional position in India is very much the same. That India is a dependency of Great Britain cannot be denied. That position can be altered in one of two ways-force or mutual consent. It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India. In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances. " At the Round Table Conference that preceded the making of the Government of India Act, 1935, therefore, the Indian leaders pressed for a Bill of Rights in the proposed Constitution Act, in order to bind the administration with certain declarations of individual rights. This was, however, rejected by the Simon Commission with these observations : " We are aware that such provisions have been inserted in many Constitutions, notably in those of the European States formed after the War. Experie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the State, in the wider significance of the term as including "the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India" (vide article 12), was enjoined not to make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause was to the extent of the contravention declared void. It will be seen that the prohibition was thus effective both against past laws as well as future laws and both were equally void in so far as they were "inconsistent with" or "in derogation of" the fundamental rights enshrined in Part III of the Constitution. No distinction was made between the past laws and future laws in this respect and they were declared void to the extent of the inconsistency or the extent of the contravention as the case may be, leaving the unoffending parts thereof untouched. It will be also seen that under article 13(2) an admonition was administered to the State not to enact any law which takes away or abridges the rights conferred by this Part and the obligation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the judgment of T. L. Venkatarama Aiyar, J., in Behram Khurshed Pesikaka v. State of Bombay and the observations of the said learned Judge in that case adopting the said distinction. (Vide pp. 638-643 of the Report). I am afraid this distinction cannot be accepted. There is nothing in the terms of the various articles embodying the fundamental rights in Part III of our Constitution which warrants such a distinction. The fundamental rights are enacted with all precision and wherever limitations on their exercise are thought of they are also similarly enacted. Such constitutional limitations are to be found within the terms of the articles themselves and there is no justification for reading in the terms of the articles anything more than what is expressly stated therein. There is further this distinction between the American Constitution and ours that whereas the American Constitution was merely enacted in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for common defence, promote the general welfare and secure the blessings of liberty and was an outline of government and nothing more, our Constitution was enacted to secure to all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts; (ii) constitutional rights; and (iii) fundamental rights. One need not consider the statutory rights in this context but the constitutional rights are those created and conferred by the Constitution. They may or may not be waived by a citizen, as stated in the text books and the decisions of the Supreme Court of the United States of America above referred to. But when the rights conferred are put on a high pedestal and are given the status of fundamental rights, which though embodied in the Constitution itself are in express terms distinguished from the other constitutional rights (e.g., fundamental rights which are enshrined in Part III of the Constitution and are enacted as immune from any legislation inconsistent with or derogatory thereto and other constitutional rights which are enacted in other provisions, (for instance in articles 265 and 286 and in Part XIII of the Constitution), they are absolutely inviolable save as expressly enacted in the Constitution and cannot be waived by a citizen. The Constitution adopted by our founding fathers is sacrosanct and it is not permissible to tinker with these fundamental rights by any ratiocination or analogy of the decisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. " This, in my opinion, is the true position and it cannot therefore be urged that it is open to a citizen to waive his fundamental rights conerred by Part III of the Constitution. The Supreme Court is the bulwark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a sacrilege to whittle down those rights in the manner attempted to be done. The result is however the same and I agree with the order proposed by my Lord the Chief Justice. S. K. DAS, J.---This is an appeal by special leave from an order dated January 29, 1958, passed by the Commissioner of Income-tax, Delhi, respondent No. 1 before us, in circumstances which are somewhat unusual and out of the ordinary. We shall presently relate those circumstances; but at the very outset it may be stated that two questions of far-reachin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act received the assent of the Governor-General on April 18, 1947, and came into force on May 1, 1947. On July 22, 1948, the case of the assessee was referred to the Investigation Commission, constituted under section 3 of the Act. The reference was made under section 5(1) of the Act, and it stated that the Central Government had prima facie reasons for believing that the assessee either alone or in combination with other persons evaded payment of taxation on income to a substantial extent, and, therefore, the case of the assessee was sent to the Investigation Commission for investigation and report. The period of investigation was from April 1, 1939, to March 31, 1947. The report of the Investigation Commission which has been made available to us shows that the case against the assessee was that he carried on a business of supplying tents, executing contract works, and commission agency for some textile mills on a fairly extensive scale, both individually and in partnership with his brother. It appears that the total wealth statement of the assessee was filed on November 10, 1948, and was forwarded to an authorised official appointed under section 6(3) of the Act. From January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforcing the payment of the demand and the terms and conditions of settlement". Though under the terms of settlement no instalments were given, it appears that the assessee was allowed to pay the amount at the rate of Rs. 5,000 per month. It further appears that up to and including September 8, 1957, the assessee had paid in all a sum of Rs. 1,28,000 towards the demand. In December, 1955, was given the decision of this court in M. Ct. Muthiah v. Commissioner of Income-tax, in which the majority of judges held that section 5(1) of the Act was ultra vires the Constitution, as it was discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution by reason of two amendments which were made in section 34 of the Indian Income-tax Act, 1922---one in 1948 by the enactment of the Income-tax and Business Profits Tax (Amendment) Act, 1948 (48 of 1948), and the other in 1954 by the enactment of the Indian Income-tax (Amendment) Act, 1954 (33 of 1954). Sometime earlier than the aforesaid decision, the Income-tax Officer concerned had sent a recovery certificate to the Collector, New Delhi, and the assessee stated that in execution of the said certificate hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared and a settlement based thereon is neither valid, nor can it be enforced. On behalf of the respondents, the learned Attorney-General has contended that there is no decision of this court which has held that section 5(1) of the Act is wholly void and on a proper construction of the various sections of the Act, it will be found that there are two separate and distinct procedures or jurisdictions which the Investigation Commission may follow or exercise: one is investigation and the other relates to settlement. He has submitted that the jurisdiction conferred on the Investigation Commission under section 8A, which was inserted in the Act in 1949 by section 33 of Act 67 of 1949, is not affected by the decision in Muthiah's case, and if the Investigation Commission had jurisdiction to entertain an application from the assessee for settlement, approve of the same, and refer it to the Central Government, the latter had also jurisdiction to accept it under sub-section (1) and make necessary orders under sub-section (2) of section 8A. In short, the argument of the learned Attorney-General is that there is nothing in Muthiah's decision, which renders section 8A constitutionally invalid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to any case or points in a case and making such investigation as it considers necessary, report to the Central Government that in its opinion further investigation is not likely to reveal any substantial evasion of taxation on income and on such report being made the investigation shall be deemed to be closed. (4) If in the course of investigation into any case or points in a case referred to it under sub-section (1), the Commission has reason to believe---- (a) that some person other than the person whose case is being investigated has evaded payment of taxation on income, or (b) that some points other than those referred to it by the Central Government in respect of any case also require investigation, it may make a report to the Central Government stating its reasons for such belief and, on receipt of such report, the Central Government shall, notwithstanding anything contained in sub-section (1), forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report. " Section 5 as originally enacted mentioned the date 30th of June, 1948, but by Act 49 of 1948 the date substituted was "1st day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or points in whose case is or are being investigated to rebut any evidence brought on the record against him, he shall, on application made in this behalf and on payment of such fees as may be prescribed by Rules made under this Act, be furnished with certified copies of documents, statements, papers and materials brought on the record by the Commission. (6) In any proceedings under this Act, the Commission may, in its discretion, admit in evidence and act upon any document notwithstanding that it is not duly stamped or registered. " Section 8 states in effect what the Commission shall do on the conclusion of the investigation : it states that the materials brought on the record shall be considered by all the members, and the report shall be in accordance with the opinion of the majority. Sub-section (2) of section 8 gives the Central Government power to direct reopening of assessment proceedings on the report of the Commission. Sub-section (4) states that in the assessment or reassessment proceedings in pursuance of a direction given under sub-section (2), the findings recorded by the Commission shall be final, subject to the provisions of sub-sections (5) and (6). Then come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the settlement, unless the initiation of such proceedings is expressly allowed by the terms of the settlement. " Section 9 bars the jurisdiction of courts, but it is not disputed that if any of the provisions of the Act are ultra vires the Constitution, section 9 will neither cure the defect nor stand in the way of the assessee. Section 10, the last section, gives the Central Government power to make rules. The above recital gives a brief conspectus of the main provisions of the Act. It is necessary now to refer to a few earlier decisions of this court with regard to some of these provisions. The earliest in point of time is the decision in Suraj Mall Mohta and Co. v. A. V. Viswanatha Sastri, where sub-section (4) of section 5 of the Act and the procedure prescribed by the Act in so far as it affected the persons proceeded against under that sub-section, were held to be discriminatory and therefore void and unenforceable. No opinion was, however, expressed on the validity of section 5(1) of the Act. In Sree Meenakshi Mills Ltd. v. Sri A. V. Viswanatha Sastri, it was held that after the coming into force on July 17, 1954, of the Indian Income-tax (Amendment) Act, 1954 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already concluded by reports made by the Commission and directions given by Government before January 26, 1950, the cases which were pending before the Commission for investigation as also assessment or re-assessment proceedings which were pending on January 26, 1950, were hit by article 14. The assessment orders were accordingly quashed as being unconstitutional. Now, we come back to the problems before us: (1) what is the effect of Muthia's decision in the present case, and (2) does the Act contemplate two separate and distinct, but severable, procedures or jurisdictions---one relating to investigation and the other to settlement, so that the vice of discrimination (if any) attaches to the investigation procedure only and not to the other ? We do not see how the learned Attorney-General can escape from the position that Muthia's decision holds in express terms that section 5(1) of the Act was bit by article 14 of the Constitution on and after January 26, 1950. The ratio of the decision was thus explained in the majority judgment at pages 400-401 : " After the 8th September, 1948, there were two procedures simultaneously in operation, the one under Act XXX of 1947, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re referred by the Central Government for investigation by the Commission before September 1, 1948, formed a class by themselves and (2) that proceedings having started before the Commission under a reference valid at the time when it was made cannot be affected by any subsequent amendment of the Income-tax Act, 1922, were raised, but not accepted in Suraj Mall Mohta's, Meenakshi Mills' or Muthia's case. There has been some argument before us as to how the two procedures---one prescribed under the Income-tax Act, 1922, and the other under the Act---compare and contrast with, each other; but this is a point which was canvassed at great length in each of the three cases mentioned above. This court found in unequivocal terms that the procedure prescribed under the Act was more summary and drastic, and in Suraj Mull Mohta's case the substantial differences between the two procedures were summarised at pages 463-466 of the report. We do not propose to cover the same ground again, but content ourselves with drawing attention to what was pointedly said in Suraj Mall Mohta's case, namely, that it was conceded on behalf of Government that the procedure prescribed by the impugned Act in sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any discriminatory procedure. He has sought to distinguish Muthia's case on the same ground, viz., that the re-assessments made in that case were actually based on a discriminatory procedure. In our view the ratio of the majority decision in Syed Qasim Razvi's case has no application in the case under our consideration, and the principle which applies is what was laid down in Lachmandas's case. The majority decision in Syed Qasim Razvi's case proceeded on the finding (to quote the words of Mukherjea, J., who delivered the majority judgment) that "although there were deviations in certain particulars, the accused had substantially the benefit of a normal trial". The minority judgments, however, very pertinently pointed out that the discriminatory provisions were an integral part of the Regulation under which the accused person in that case was tried and in fact the discriminatory provisions were applied. Bose, J., (as he then was) expressed the view (at page 618) "that in testing the validity of a law, it is irrelevant to consider what has been done under it, for a law is either constitutional or not and the validity or otherwise cannot depend upon what has been accomplished un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal report four days after. It is difficult to understand how in the circumstances stated above, it can be said that the Commission followed a non-discriminatory procedure or that it had two jurisdictions---one relating to investigation and the other to settlement. The jurisdiction was really one, and the procedure followed also the same. It is not as though the Act provided a separate procedure for purposes of effecting a settlement; nor is this a case where a settlement has been made without applying any of the provisions relating to investigation. A full investigation was made, and after the assessee had been subjected to the drastic and summary procedure under the Act, he was told what the result of the investigation was. Then, he made an application for settlement, which was approved by the Commission under section 8A. We are accordingly of the view that the learned Attorney-General has failed to make out his case that (1) Muthia's decision does not apply and (2) the settlement under section 8A of the Act is a legally valid settlement by reason of the severability or non-application of the discriminatory procedure under the Act in the case of the assessee. This brings me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-56 5,000 ,, 13- 6-56 5,000 ,, 6- 8-56 5,000 ,, 7- 9-56 5,000 ,, 9-10-56 5,000 ,, 10-11-56 5,000 ,, 23-12-56 5,000 ,, 14- 1-57 5,000 ,, 29- 3-57 5,000 ,, 4- 6-57 5,000 ,, 8- 9-57 8,000 ------------------- 1,28,000 ------------------- The learned Attorney-General has in this connection referred us to the application for settlement which the assessee had made to the Commission, wherein the following statements were made : " In view of the fact that though no disclosure statement had been made before the submission of his reports by the authorised official, still during the enquiry before the Commission, the assessee and his auditors admitted their liability to tax in respect of the aforesaid sum of Rs. 4,47,915, the Commission was of the opinion that the assessee should be granted the benefit of a settlement on the lower concessional basis of payment of 75 per cent. of the undisclosed income by way of tax. The Commission was also of the opinion that the assessee should pay by way of penalty a sum of Rs. 14,064. The assessee accepts the conclusions of the Commission as regards the amount of income that escaped assessment, the tax payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his fundamental rights has been contravened for which he can claim relief under article 32 of the Constitution. Article 32 of the Constitution is not intended for relief against the voluntary actions of a person. His remedy, if any, lies in other appropriate proceedings. " There has been a good deal of argument before us as to the true effect of the decision in Gopal Das Mohta's case. While I recognise that the reason stated for the decision, viz., that article 32 is not intended for relief against voluntary actions of a person, comes very near to saying that a person has waived his protection in a given case since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him, I am unable to hold that the decision proceeded strictly on the doctrine of waiver ; it is perhaps true to say that some of the observations made therein are of a "Delphic nature to be translated into concreteness by the process of litigating elucidation" (to borrow the words of Frankfurter, J., in Machinists v. Gonzales). It seems to me that the decision proceeded more upon the scope of article 32 than upon the doctrine of waiver. I am fortifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decisions of this court relied on by the learned Attorney-General do not help him in establishing waiver. Let me now examine the circumstances on which the learned Attorney-General founds his plea of waiver. Indeed, it is true that the assessee submitted to the discriminatory procedure applied to him by the Commission ; he also asked for a settlement under which he agreed to pay 75% of his alleged tax liability and a small amount of penalty ; he made some payment in instalments even after Muthia's decision in December, 1955. Do these circumstances amount to waiver ? It is to be remembered that in 1953-1954 when the discriminatory procedure of the Act was applied to him and the report against him was made by the Commission on which the settlement is based, the assessee did not know, nor had it been declared by a court of competent jurisdiction, that section 5(1) of the Act was ultra vires. In his application for a settlement, he said clearly in paragraph 3 that the Commission announced it as its view that the income, profits and gains that had escaped assessment in the hands of the assessee was Rs. 4,47,915. The assessee also knew that under the Act this finding was final and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sustaining the plea of waiver has not been laid in this case, and the onus being on the respondents, the plea must fail. In view of my finding that the necessary foundation on facts for sustaining the plea of waiver has not been laid in this case, it becomes unnecessary to decide, in the abstract, the further question if a right guaranteed by any of the provisions in Part III of the Constitution can be waived at all. I am of the view that this court should indeed be rigorous in avoiding to pronounce on constitutional issues where a reasonable alternative exists; for we have consistently followed the two principles (a) that "the court will not anticipate a question of constitutional law in advance of the necessity of deciding it" (Weaver on Constitutional Law, page 69) and (b) "the court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied". My Lord the Chief Justice and my learned brother Kapur, J., have however expressed the view that the fundamental right guaranteed under article 14 cannot be waived; my learned brethren Bhagwati and Subba Rao, JJ., have expressed the view that none of the fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the law-making power of a State is restricted by a written fundamental law, then any law enacted and opposed to fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of the Parliament and the State legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution. " His Lordship then referred to article 13 of the Constitution and said that it was a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which came into conflict with Part III of the Constitution. His Lordship added : " In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any law which takes away or abridges the rights conferred by Part III" of the Constitution and any law made in contravention of clause (2) of article 13 shall to the extent of the contravention be void. It seems clear to me that the article itself recognises the distinction between absence of legislative power which will make the law made by an incompetent Legislature wholly void, and exercise of legislative power in contravention of a restriction or check on such power, which will make the law void to the extent of the inconsistency or contravention. The use of the words "to the extent of the inconsistency" and "to the extent of the contravention" indubitably points to such a distinction, and indeed this was pointed out in Bhikaji Narain Dhakras v. State of Madhya Pradesh . This was an unanimous decision of this court and several earlier decisions including the decision in Keshavan Madhava Menon's case, on which Mahajan, C.J., placed so much reliance, were considered therein. The decision in Behram Khurshed Pesikaka was also considered, and then the following observations were made with regard to article 13 of the Constitution at page 598 : " Article 13(1) by reason of its lang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the mere use of the word "void" in article 13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of our Constitution. Under the American Constitution also, a law made in violation of a constitutional guarantee is struck down, because under article VI of that Constitution, "the Constitution and the laws of the United States which shall be made in pursuance thereof ......... shall be the supreme law of the land." I am unable, therefore, to accept the view that article 13 shows that the doctrine of waiver can never be applied in respect of the provisions in Part III of the Constitution. Let me now go to the second reason. Is there anything in the preamble and the scheme of our Constitution, with particular reference to Part III, which will make the doctrine of waiver inapplicable ? Let me first place the two preambles side by side: Preamble to our Constitution. Preamble to the American Constitution, 1787. "We, the people of India, having "We the people of the United States, in solemnly resolved to constitute India into order to form a more perfect Union, esta- a Sovereign Democratic Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interests of general welfare etc. In other words, there is an attempt at adjustment of individual rights with social good, and in that sense the limitations or restrictions are also defined. But I do not think that this distinction has any particular bearing on the question at issue before us. The rights as also the restrictions are justiciable, and an interpretation of the rights given and of the restrictions imposed, by courts of competent jurisdiction is contemplated. Indeed, I recognise that there is a constitutional policy behind the provisions enacted in Part III of the Constitution. In a sense, there is a legislative policy in all statutory enactments. In my opinion, the crucial question is not whether there is a constitutional or legislative policy behind a particular provision, but the question is---is the provision meant primarily for the benefit of individuals or is it for the benefit of the general public? That distinction has, I think, been recognised in more than one decision. Take, for example, an ordinary statutory enactment like section 80 of the Code of Civil Procedure which says that no suit shall be instituted against the Government or against a public offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink, a three-fold classification : (1) a right granted by an ordinary statutory enactment; (2) a right granted by the Constitution; and (3) a right guaranteed by Part III of the Constitution. With regard to an ordinary statutory right there is, I think, no difficulty. It is well recognised that a statutory right which is for the benefit of an individual can in proper circumstances be waived by the party for whose benefit the provision has been made. With regard to a constitutional right, it may be pointed out that there are several provisions in our Constitution which do not occur in Part III, but which yet relate to certain rights ; take, for example, the rights relating to the Services under the Union and the States in Part XIV. I do not think that it can be seriously contended that a right which is granted to a Government servant for his benefit cannot be waived by him, provided no question of jurisdiction is involved. I may refer in this connection to the provisions in Part XIII which relate to trade, commerce and intercourse within the territory of India. These provisions also impose certain restrictions on the legislative powers of the Union and of the States with regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority of law which provides for compensation etc. Take a case where a man's property is acquired under a law which does not fix the amount of compensation or specify the principles on which or the manner in which the compensation is to be determined and given. The man whose property is taken may raise no objection to the taking of his property under such law. Indeed, he may expressly agree to Government taking his land for a public purpose under the law in question, though it does not comply with the requirements as to compensation. Can such a man after two or three years change his mind and say that the law is invalid and his land on which a school or a hospital may have been built in the meantime should be restored to him, because he could not waive his fundamental right ? In my opinion, if we express the view in the abstract that no fundamental right can ever be waived, many startling and unforeseen results may follow. Take another example. Suppose a man obtains a permit or a licence for running a motor vehicle or an excise shop. Having enjoyed the benefit of the permit for several years, is it open to him to say when action is proposed to be taken against him to terminate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Constitution. Speaking generally, the prohibition in Part III is against the State from taking any action in violation of a fundamental right. The word "State" in that Part includes the Government and Parliament of India as also the Government and Legislature of each of the States and also all local or other authorities within the territory of India or under the control of the Government of India. The American Constitution also says the same thing in effect. By article VI it states that the Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land. It is well settled in America that the first ten amendments to the original Constitution were substantially contemporaneous and shall be construed in pari materia. In many of the amendments the phraseology used is similar to the phraseology of the provisions of Part III of our Constitution. The position under the American Constitution is well settled and a succinct statement of that position will be found in Rottschaefer on Constitutional Law, pages 28-29. The learned author has summarised the position thus : " There are certain constitutional provisions that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations of Frankfurter, J., in William A. Adams' case. The observations were made in connection with a case where a trial was held without a jury at the request of the accused person himself in spite of the guarantee of Amendment VI. The observations were : " What was contrived as protections for the accused should not be turned into fetters. To assert as an absolute that a layman, no matter how wise or experienced he may be, is incompetent to choose between judge and jury as the tribunal for determining his guilt or innocence, simply because a lawyer has not advised him on the choice, is to dogmatize beyond the bounds of learning or experience." I have not been able to find any real reason on the basis of which the decisions given above with regard to the American Constitution can be held to be inapplicable to similar cases arising under the Indian Constitution. Two subsidiary reasons have been given for holding that the position under the Indian Constitution is different. One is that ours is a nascent democracy and, therefore, the doctrine of waiver should not apply. With respect, I am unable to concur in this view. I do not think that we shall be advancing the cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be free to work, to enjoy the fruits of his labour, and to barter with others ; he would also be free to enforce the law of nature (whose precepts Locke did not define) against every other man. Since Locke was an optimist about human nature he thought men would get along pretty well in this lawless condition. Yet the condition of nature is for Locke a fiction like the assumption of a frictionless machine in mechanics. The chief disadvantages that men in this condition would suffer were, he thought, the absence of an established law, the absence of a known and impartial magistrate to settle disputes, the absence of a power sufficient to execute and enforce the judgment of the magistrate. Moved by these inconveniences, men would enter into a social compact with each other whereby each would transfer to a third person, the government, such rights over his person and property as the government must have in order to remove these inconveniences. All other rights, privileges, and immunities he reserved, as a grantor of land conveys the fee simple to his son and reserves a life estate to himself. These reserved rights were 'natural' rights because they had originated in the conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question and leave it to be decided in a more appropriate case. The facts have been fully stated by my Lord the Chief Justice in his judgment and I need not restate them. The learned Attorney-General contended that in the American law the principle of waiver was applied to rights created by the Constitution except in cases where the protection of the rights was based upon public policy and that, by the same analogy, if no public policy was involved, even in India, the person affected by the infringement of the fundamental rights could waive the constitutional protection guaranteed to him. It was said that in the present case the appellant waived his fundamental right under article 14 of the Constitution as the right was only in respect of his liability to tax and he could legitimately waive it. To appreciate this argument it would be convenient at the outset to notice the American law on the subject. Certain rights, which are sometimes described as the Bill of Rights, have been introduced by the Amendments to the Constitution of America. They declare the rights of the people of America in respect of the freedom of religion, speech, press, assemblage and from illegal seizures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, liberty or property) without due process of law. To this rule there are no exceptions. It cannot be waived. COOLEY'S "CONSTITUTIONAL LIMITATIONS": Where a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. In criminal cases the doctrine that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public offences are not within the provinces of individual consent or agreement. CORPUS JURIS SECUNDUM : It has been stated supra that the doctrine of waiver extends to rights and privileges of any character, and since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred by statute, or guaranteed by constitution, provided such rights and privileges r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the relevant authorities under the Constitution to make laws in derogation of the said rights or whether the said rights are for the benefit of the general public. At the outset I would like to sound a note of warning. While it is true that the judgments of the Supreme Court of the United States are of great assistance to this court in elucidating and solving the difficult problems that arise from time to time, it is equally necessary to keep in mind the fact that the decisions are given in the context of a different social, economic and political set up, and therefore great care should be bestowed in applying those decisions to cases arising in India with different social, economic and political conditions. While the principles evolved by the Supreme Court of the United States of America may in certain circumstances be accepted, their application to similar facts in India may not always lead to the same results. It is, therefore, necessary to consider the nature of the fundamental rights incorporated in the Indian Constitution, the conditions of the people for whose benefit and the purpose for which they were created, and the effect of the laws made in violation of those r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make laws in violation of those rights. The entire Part, in my view, has been introduced in public interest, and it is not proper that the fundamental rights created under the various articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit. Part III reflects the attempt of the Constitution makers to reconcile individual freedom with State control. While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions, in India, the fundamental rights and their limitations are crystallized and embodied in the Constitution itself; while in America a free hand was given to the judiciary not only to evolve the content of the right but also its limitations, in the Indian Constitution there is not much scope for such a process. The court cannot therefore import any further limitations on the fundamental rights other than those contained in Part III by any doctrine, such as "waiver" or otherwise. I would, therefore, hold that the fundamental rights incorporated in Part III of the Constitution cannot be waived. It is said that such an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingency where a citizen would be in a worse position than he was if he could not exercise the right of waiver. In regard to freedom to acquire, hold and dispose of property, a plausible argument may be advanced, namely, that a citizen should have a right to waive his right to acquire, hold and dispose of property ; for, otherwise he might be compelled to acquire and hold his property, even if he intended to give it up! There is an underlying fallacy in this argument. The article does not compel a citizen to acquire, hold and dispose of property just as it does not compel a person to do any of the acts covered by the other freedoms. If he does not want to reside in any part of the territory of India or to make a speech or to practise any profession, he is at liberty not to do any of these things. So too, a person may not acquire the property at all or practise any profession but if he seeks to acquire property or practise any profession, he cannot be told that he has waived his right at an earlier stage to acquire property or practise the profession. A freedom to do a particular act involves the freedom not to do that act. There is an essential distinction between the non-exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggested that they are not in public interest. The cultural and educational rights of the minorities and their right to establish and administer educational institutions of their choice are given for the protection of the rights of the minorities and it cannot be said that they are not in public interest. Article 31, which prohibits the State from depriving a person of his property save by authority of law or to acquire any property without paying compensation, is intended to protect the properties of persons from arbitrary actions of the State. This article is conceived in the interest of the public and a person cannot say that he can be deprived of his property without authority of law or that his land can be acquired without compensation. It is suggested that if a person, after waiving his fundamental right to property and allowing the State to incur heavy expenditure in improving the same, turns round and claims to recover the said property, the State would be put to irreparable injury. Firstly, no such occasion should arise, as the State is not expected to take its citizens' property or deprive them of their property otherwise than by authority of law. Secondly, if the own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence in Part III either derogates from the content of the fundamental rights declared therein or sustains the doctrine of waiver in its application to the said rights. Article 35 confers on the Parliament, the power to legislate for giving effect to the provisions of Part III to the exclusion of the Legislatures of the States. This article also does not create a fundamental right, but provides a machinery for enforcing that right. A startling result, it is suggested, would flow from the rejection of the doctrine of waiver and the suggestion is sought to be illustrated by the following example: A person takes a permit for several years from the State for running a motor vehicle or an excise shop. Having enjoyed the benefit for several years and when action is proposed to be taken against him to terminate the licence, he contends that the law under which the permit was granted to him offended his fundamental rights and therefore constitutionally not valid. It is asked whether it would be open to him to say that the very Act under which the permit was granted to him was not valid in law. To my mind, this illustration does not give rise to any anomaly. Either a person can run a mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that as in the present case section 5(1) of the Act III of 1947 was declared to be invalid only on the ground that it was hit by article 14 of the Constitution, the law must be deemed to be on the statute book and therefore the appellant was within his right to waive his constitutional guarantee. I am unable to appreciate this argument. The scope of article 13(1) of the Constitution was considered by this court in Keshavan Madhava Menon v. State of Bombay. This court, by a majority, held that article 13(1) of the Constitution does not make existing laws which are inconsistent with the fundamental rights, void ab initio, but only renders such laws unenforceable and void with respect to the exercise of the fundamental rights on and after the date of commencement of the Constitution. Mahajan, C.J., who was a party to that decision, explained the word "void" in article 13(1) of the Constitution in Behram Khurshed Pesikaka v. State of Bombay. He observed at page 652 thus : " It is axiomatic that when the law-making power of a State is restricted by written fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by Mahajan, C.J., in Behram Khurshed's case. The problem that confronted the learned Judges was a different one and they resolved it by applying the doctrine of "eclipse." The legal position, viz., that the law declared to be void either on the ground of legislative incompetence or for the reason of constitutional limitation, as stated in the earlier decisions, remains unshaken by this decision. So long as the inconsistency remains the law continues to be void, at any rate vis-a-vis the fundamental rights of a person. We are not concerned in this case with the doctrine of revival; for the inconsistency of section 5(1) of the Act with the fundamental right under article 14 of the Constitution has not been removed by any amendment of the Constitution. So long as it is not done, the said section is void and cannot affect the fundamental rights of the citizens. In M. Ct. Muthiah v. Commissioner of Income-tax, it was declared that section 5(1) of Act III of 1947 was unconstitutional on the ground that it infringed the fundamental rights of the citizens under article 14 of the Constitution. Under article 141 of the Constitution, the law declared by the Supreme Court is binding on al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted as a matter of constitutional policy. Reference to some of the articles, inter alia, articles 5(1), 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'you can discriminate', or get convicted by waiving the protection given under articles 20 and 21. " On the question of waiver, Venkatarama Aiyar, J., in his judgment before review, considered the American decisions and was inclined to take the view that under our Constitution when a law contravenes the provisions intended for the benefit of the individual, it can be waived. But the learned Judge made it clear in his judgment that the question of waiver had no bearing to any issue of fact arising for determination in that case but only for showing the nature of the right declared under article 19(1)(f) and the effect in law of a statute contravening it. Das, J., as he then was, in his dissenting judgment, did not state his view on this question but expressly reserved it in the following words: " In coming to the conclusion that I have, I have in a large measure found myself in agreement with the views of Venkatarama Aiyar, J., on that part of the case. I, however, desire to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
